Makenyi v Njihia & another (Civil Suit E245 of 2024) [2026] KEMC 895 (KLR) (10 September 2026) (Ruling) Neutral citation: [2026] KEMC 895 (KLR) REPUBLIC OF KENYA IN THE BUNGOMA LAW COURTS CIVIL SUIT E245 OF 2024 TO OMONO, SRM SEPTEMBER 10, 2026 BETWEEN EMMANUEL WAMBULEI MAKENYI .................................................... PLAINTIFF AND RICHARD NJIHIA ................................................................................ DEFENDANT AND SHIVJI MURJI KERAJ ....................................................................... THIRD PARTY RULING 1. This ruling determines the Plainti’s Party and Party Bill of Costs dated 08th July 2026. 2. Items 1, 3-6, 9–20, and 22 are assessed as drawn since the same were drawn to scale. Getting Up Fees 3. Item 2 is assessed o given that Schedule 7 of the ARO does not provide for getting up fees. Attendances 4. Items 7-8, and 21 are assessed at Kshs. 1,400/= each per Schedule 7 (6) of the ARO. Court Fees 5. Items 23 – 25 are assessed o since the said fees are yet to be incurred by the Plainti. Value Added Tax 6. The Plainti prayed for an award of V.A.T in the instant Party and Party Bill of Costs. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/895/eng@2026-09-10 1
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7. The costs in a Party to Party Bill of Costs are costs due to a litigant, not a counsel representing a litigant. This begs the question of whether a litigant is entitled to a claim for VAT during the assessment of their costs. This question was answered in Pyramid Motors Limited vs Langata Gardens Limited (2015)eKLR, where J.L. Onguto, J (as he then was) rendered himself thus; “ On the nal issue of VAT, I hold the simple view that in allowing the same the Master erred under the Value Added Tax Act, 2013 particularly section 5 thereof. Value Added Tax (VAT) is chargeable in taxable supply made by any registered person. There was no taxable supply of either goods or services made to the Applicant herein by the Respondent herein. The Bills herein concerned Party and Party costs and VAT could then not apply as neither party fetched nor supplied services to the other. True, legal services were rendered but it is not the Advocate who was being compensated herein. The Master could only have awarded VAT if the Bills were Advocate- Client Bills or if there was tendered evidence before the Master that the Plainti had paid VAT and was consequently entitled to indemnity. But yet that again is also debatable whether the Plainti was a vatable person. I would vacate the award on VAT as the Master erred. In the result, I would not return the Bills to the master for re-assessment but would direct that the item of VAT be completely and wholly taxed o” 8. The holding in the Pyramids Motors Limited case (supra) was also followed in Kenya Commercial Bank Limited v Stagecoach Management Limited [2017] eKLR. 9. This court’s understanding of the authorities above is that unless a party proves that it supplied taxable goods and services to the other party. V.A.T cannot be awarded in a Party and Party Bill of Costs. 10. The Plainti did not supply any taxable goods and services to the Defendant. The mere fact that a law rm representing a party pays V.A.T does not entitle a party to an award of V.A.T. 11. For the reasons above, the Plainti’s claim for V.A.T is assessed o. Determination 12. The upshot of the above is that the costs due to the Plainti are assessed at Kshs. 97,200/=. READ, SIGNED AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 10TH SEPTEMBER 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Misaro for the Plainti C/A: Mr. Rioba/Ms. Cherop https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/895/eng@2026-09-10 2
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